Under federal law, U.S. employers are required to verify the identity and employment authorization of all hired workers. This verification process requires a new hire to complete Form I-9, Employment Eligibility Verification and submit certain documentation proving employment authorization. Proper employment verification helps ensure that employers do not fall victim to hiring or retaining “unauthorized” workers. It is crucial for employers to maintain strict compliance with all I-9 rules and procedures, especially as we see I-9 audit numbers dramatically increase under the Trump administration.

In light of the Trump administration’s emphasis on protecting U.S. workers under the “Buy American and Hire American” Executive Order, employers have witnessed a tremendous increase in U.S. Immigration and Customs Enforcement (ICE) I-9 audits this year. As of July 2018, ICE served more 5,200 businesses with I-9 notices of audit. To put this in perspective, in 2017 only 1,360 audits were issued for the entire year.

During an I-9 audit, ICE will review all I-9 records for both substantive and technical errors. The agency may also review the company’s hiring practices and procedures and refer violations to additional government agencies. In addition to I-9 audits, further efforts have been made to uncover employers who hire unlawful workers, including the use of raids, confidential informants, and undercover agents.

I-9 violations can lead to hefty civil fines and in extreme situations where employment of unauthorized workers is involved, criminal prosecution. ICE has even used debarment from all federal contracts as a deterrent to the employment of unauthorized workers.

To protect your business from the potential consequences of worksite noncompliance, employers should ensure all I-9 employment eligibility forms are in order. This must include more than just a cursory review of the company’s I-9 documents. Employers should seriously consider conducting a comprehensive internal audit, which may include:

▪ A complete review of the company’s I-9 documents (and E-verify, if applicable);
▪ Correcting technical errors on Form I-9;
▪ Promptly investigating red flags indicating substantive errors found on Form I-9;
▪ An evaluation of the company’s hiring processes and procedures;
▪ An evaluation of HR training requirements pertaining to I-9 compliance;
▪ Considering the use of I-9 software to help HR teams manage the progress of all Form I-9s;
▪ Considering enrolling in E-verify, which is the federal electronic system that allows employers to confirm employment eligibility of newly hired employees.

Further, an evaluation of procedures for handling difficult I-9 issues involving foreign workers should be implemented. Employers may be subject to additional I-9 reverification procedures depending on the foreign worker’s situation. Employers may find I-9 compliance problematic where HR personnel are not familiar with the immigration process.

For example, an employer hires an F-1 student with work authorization. The student’s work authorization will soon expire, but the employee timely filed an extension application. Under these circumstances, the employee will have 180 days from the work authorization expiration date to legally work while the extension is pending. The employer must properly update the employee’s I-9 and remember to reverify once the extension of work authorization is approved.

Although it is not required that employers become experts in immigration law, HR personnel should also understand when and how to update Form I-9 if the company has foreign workers on payroll.

I-9 verification may seem intuitive to most HR personnel, but complicated issues can arise that employers must be prepared to handle. Employers are now expected to act as an enforcer of the Trump administration’s immigration policies through strict worksite compliance. Therefore, employers should seek legal representation to assist with internal I-9 audits and help pinpoint any issues in the company’s hiring processes and procedures.